1997 PLP 1368 (SCMR)

SAJJAD ALI SHAH, C.J.‑‑‑In both these Criminal Miscellaneous Petitions 9 and 10 of 1994, grievance of the petitioners is that respondents named therein have committed Contempt of this Court as contemplated under Article 204 of the Constitution of Islamic Republic of Pakistan for having intentionally and deliberately passed orders in favour of respondent No.l in violation of order passed by this Court on 12‑7‑1993 refusing leave in Civil Petition for Leave to Appeal No. 1027‑L of 1992, which was filed by respondent No. l herein, namely, Ch. Khadim Hussain as petitioner.

2. Briefly stated the relevant facts in the background are that Ch. Khadim Hussain was appointed as Assistant Director/Legal (Grade‑16) in the Office of the Director‑General, Federal Investigation Agency on 27‑8‑1975 on ad hoc basis vide notification dated 12‑3‑1976. He approached the Federal Service Tribunal and filed Appeal No.113(R) of 1981, which was allowed vide order dated 12‑10‑1982 and in the result he was allowed to draw salary of Grade‑17 as he had been performing the functions of Assistant Director in that grade. Thereafter, notification dated 11‑11‑1982 was issued whereunder Ch. Khadim Hussain was appointed as Assistant Director (Grade‑17) with effect from 27‑8‑1975. Other officers made representations, which resulted in issue of notification dated 7‑3‑1985 whereby previous notification dated 11‑11‑1982 was cancelled. Ch. Khadim Hussain feeling aggrieved, filed Appeal No. 147(R) of 1985 which was dismissed and it was held that notification dated 11‑11‑1982 was illegal. Against that decision, petition for leave to appeal was filed in this Court which was registered as Civil Petition for Leave to Appeal No.325‑R of 1989. 3 In the abovementioned Civil Petition for Leave to Appeal, Ch. Khadim Hussain impleaded only two respondents who were Sercretaries of Establishment Division and Ministry of Interior of Government of Pakistan. The petition was heard by a Bench of five Judges presided over by the then learned Chief Justice. Officers who were affected adversely by issue of notification dated 11‑11‑1‑982 filed application in this Court to be impleaded as necessary parties but their prayer was rejected' on the ground that they were not parties before the Service Tribunal. Learned counsel appearing for official respondents conceded the claim of the petitioner, hence this Court granted leave and converted the petition into appeal which was numbered as Civil Appeal No. 491 of 1989 and was allowed vide a short order dated 29‑10‑1989, which is reproduced as under:‑‑ " .Upon hearing the petitioner we convert this petition into an appeal, and allow it in terms of the concession by the counsel for the respondents in his written application that the respondents have decided to concede to the stand taken by the petitioner.' In view of this concession, the impugned order is set aside. The petitioners in Civil Miscellaneous Petitions Nos.321‑R of 1989, 322‑R of 1989 and in an unnumbered civil miscellaneous petition, have prayed to be impleaded as parties in the main petition, as they contend that their right would be affected by the concession of the respondents. Since they were not parties in the appeal before the Service Tribunal, they have no locus standi to challenge the concession at this stage. Accordingly, the petitions are rejected." Needless to say that in consequence of the order passed by five learned Judges of this Court, reproduced above, notification dated 11‑11‑1982, which was set aside by the Federal Service Tribunal, stood revived and the decision of this Court attained finality because no further steps were taken to challenge it even by way of review.

4. It appears that thereafter Ch. Khadim Hussain was promoted as Deputy Director (B.P.S‑18) vide notification dated 5‑12‑1989 and feeling aggrieved Zakaria Khan Babar filed Appeal No. 182(L) of 1991 before the Federal Service Tribunal which was allowed vide decision dated 18‑10‑1992 declaring notification dated 11‑11‑1982 as void ab initio, which stood revived and became operative by earlier judgment order of this Court dated 29‑10‑1989 delivered by five Judges. Against this decision of Federal Service Tribunal, Ch. Khadim Hussain filed Civil Petition for Leave to Appeal No. 1027/L of 1992 in this Court in which leave has been refused vide order dated 12‑7‑1993 by two Hon'ble Judges of this Court and the conclusion drawn is that the Government could not recruit or appoint Ch. Khadim Hussain to Grade‑17 post from the date he took over the charge in F.I.A. This conclusion supports the proposition that notification dated 11‑11‑1982 is void ab initio which is in direct conflict with decision of five Judges of this Court as mentioned above. When there is conflict between two decisions of this Court, then the decision of the larger Bench would prevail and in such circumstances we are of the view that earlier decision of this Court rendered by five Judges holds the field. Since the Government functionaries have been impleaded in these contempt petitions as respondents for acting upon and implementing the earlier decision of five Judges of this Court, they have committed no contempt and advice rendered by the Ministry of Law in this respect, which supports our conclusion, is also correct. Contempt petitions are, therefore, dismissed. N.H.Q./F‑365/S Petitions dismissed.